Republican presidential hopeful Newt Gingrich, seen here on Friday in Delray Beach, Fla., has called for subpoenaing judges such as Fred Biery, hauling them before Congress to explain unpopular rulings.

Republican presidential hopeful Newt Gingrich, seen here on Friday in Delray Beach, Fla., has called for subpoenaing judges such as Fred Biery, hauling them before Congress to explain unpopular rulings.

Photo: Associated Press, Paul Sancya

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Fred Biery is the chief federal judge for the Western District of Texas.

Fred Biery is the chief federal judge for the Western District of Texas.

Photo: COURTESY PHOTO, Courtesy Photo

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Biery's the man Gingrich just loves to hate

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When former House Speaker Newt Gingrich calls out activist judges on the campaign trail, the name he mentions most often is Fred Biery.

Biery, the chief federal judge for the Western District of Texas, emerged as a target for conservative criticism after he ruled last summer that Medina Valley High School couldn't officially sanction prayer at its graduation ceremony.

Now the San Antonio-based judge has found himself the target of vitriolic attacks by a leading contender for the White House.

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In interviews, speeches and a white paper posted on his Website, Gingrich calls for subpoenaing judges such as Biery, hauling them before Congress to explain unpopular rulings, ignoring judicial decisions all together or simply abolishing certain courts.

In his victory speech in South Carolina, Gingrich exhorted supporters to read his 54-page treatise on “the balance of power, putting the judiciary back in its proper role and eliminating dictatorial religious bigots such as Judge Biery in San Antonio.”

Gingrich cites Thomas Jefferson's efforts to remove federal judges as historical antecedent to his ideas, but he told a forum in South Carolina last fall he wouldn't go as far as the third president.

“I would do no more than eliminate Judge Biery in San Antonio and the Ninth Circuit,” he said. “That's the most I would go for.”

But Gingrich's decision to seize on Biery as exemplifying an out-of-control judiciary has perplexed even some of those who agree with him on the larger issue.

Biery perhaps is best known for his sometimes playful, often colorful rulings, in which he quotes liberally from works both high and low. A decision last year denying a request to stop construction of highway on-ramps at Loop 1604 included references to Shakespeare, “Show Boat” and the “X-Files,” among many others.

In contrast, his decision in Schulz vs. Medina Valley is restrained and brief.

Reached this week, Biery, noting the prayer case still is under way, declined to comment on the record, suggesting his orders speak for themselves.

His ruling stood for just two days before it was overturned by the Fifth Circuit Court of Appeals in New Orleans — a textbook example, Gingrich critics point out, of a successful check on a judge's power.

The Fifth Circuit wasn't persuaded that “the individual prayers or other remarks to be given by students at graduation are, in fact, school sponsored.”

Medina Valley High School's prayer-filled graduation went forward, although the school did remove the words invocation and benediction from the program, voluntarily, before Biery issued his ruling. Gingrich, on the stump in South Carolina, pinned the change on the judge.

Fox News' Bill O'Reilly took Gingrich to task over his Biery-bashing last month, even as he agreed with the Republican hopeful that the original ruling was “insane.”

But “you can't have Congress involved with foolish decisions at that level,” he told Gingrich, who demanded to know, “Why not? Why not?”

“Because it's not the government's business until it gets out of control,” O'Reilly retorted. “They overturned him in 10 seconds.”

Andrew Cohen, a contributing editor at the Atlantic and legal analyst for “60 Minutes,” also has noted that the Fifth Circuit's decision simply remanded the case back to Biery's court, without addressing the merits of his decision — hardly “a jeremiad against an ‘activist' trial judge,” he wrote.

Biery has also urged the two sides into mediation.

Noting that both sides have prevailed on certain points, he suggested in a recent order that instead of spending potentially hundreds of thousands of dollars and risking more community strife, the two sides “may see an opportunity to conclude the matter, not only sooner and less expensively, but as a teachable moment and example for the district's children of how people with opposing views can listen to one another and resolve disagreements peaceably.”

That's “not the action of an activist judge,” St. Mary's constitutional law Professor Michael Ariens said.

And while he wouldn't opine on the merits of Biery's decision, he called it “defensible as a constitutional interpretation of (the) Establishment Clause,” noting that Biery cited 11 cases of precedent, including 1992's Lee vs. Weisman, in which the Supreme Court ruled against school-sanctioned, student-led prayers before football games in a Texas case.

Biery's ruling said students were free to state their own beliefs in remarks during graduation, but couldn't ask the crowd to join in prayer.

A healthy debate on issues such a school prayer is fundamentally different from “eliminating (judges') constitutionally enshrined right to tenure during good behavior,” according to a statement released earlier this week from the Constitution Project, a nonpartisan legal think tank.

Decrying that “legitimate judicial criticism” has degenerated into “intimidation,” the statement was signed by the group's board of directors, including former FBI director William Sessions, who also was a federal judge in San Antonio, and Asa Hutchinson, a former U.S. attorney and congressman.

Calling himself an evangelical conservative, Hutchinson said he's been “vocal on many occasions” about judicial decisions he disagrees with.

“But the summoning of judges by U.S. marshals to explain their decisions to Congress,” he said, “crosses a line.”